KINGDOM OF SAUDI ARABIA. Capital Market Authority THE RULES FOR SPECIAL PURPOSES ENTITIES. (Draft)

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1 KINGDOM OF SAUDI ARABIA Capital Market Authority THE RULES FOR SPECIAL PURPOSES ENTITIES (Draft) English Translation of the Official Arabic Text Issued by the Board of the Capital Market Authority Pursuant to its Resolution Number [ ] Dated [ ] Corresponding to [ ] Based on the Capital Market Law Issued by Royal Decree No M/30 dated 2/6/1424H Arabic is the official language of the Capital Market Authority Important Notice: the current version of these Rules, as may be amended, can be found at The Authority website:

2 CONTENTS PART 1 : GENERAL PROVISIONS Article 1 : Preliminary Article 2 : Definitions Article 3 : Scope and Application Article 4 : Waivers Article 5 : Right of Appeal PART 2 : ESTABLISHMENT AND LICENSING Article 6 : Establishment Article 7 : licensing Requirements Article 8 : Licensing conditions Article 9 : Procedures and powers of the Authority in relation to an application for licensing Article 10 : Effect of licensing Article 11 : Pre-licensing contracts Article 12 : Paying up share capital PART 3 : BY-LAWS Article 13 : By-laws PART 4 : CAPITAL Article 14 : Paid-up capital PART 5 : SHAREHOLDERS Article 15 : Application Article 16 : Financial rights and liabilities Article 17 : General meetings Article 18 : Shareholders rights to participate in decisions Article 19 : Use of proxy Article 20 : Resolutions Article 21 : Single shareholder decision-making procedures Article 22 : Transfer of shares 2

3 Article 23 : Effect of contribution Article 24 : Share register Article 25 : Increases and decreases in share capital PART 6 : REGISTERED DIRECTORS Article 26 : Requirements for registration Article 27 : Residence Article 28: Appointment, removal and remuneration of registered directors Article 29 : Duties of Registered Directors Article 30 : Decision-making Article 31 : Powers and authorities Article 32 : Delegation Article 33 : Liability Article 34 : Register of directors Article 35 : Registration Article 36 : Responsibilities of registered directors Article 37 : Notification requirements and powers of the Authority Article 38 : Suspension or cancellation of registration PART 7 : SPONSOR Article 39 : Requirement for sponsor Article 40 : Status of sponsor Article 41 : Restrictions on sponsor rights against special purposes entity Article 42 : Notification and record-keeping requirements and powers of the Authority PART 8 : NEW FINANCING TRANSACTIONS Article 43 : Application Article 44 : Approval of new financing transactions by the Authority Article 45 : Procedures and powers of the Authority in relation to a financing transaction application Article 46 : Timing periods 3

4 PART 9 : FINANCING TRANSACTIONS CONDITIONS Article 47 : Application Article 48 : Financing structures Article 49 : Appointment of a custodian Article 50 : Investor protection Article 51 : Use of proceeds Article 52 : Payments and bank accounts Article 53 : Investments Article 54 : Enforceability Article 55 : Financing transactions involving the issue of asset-linked recourse debt instruments or asset backed debt instruments Article 56 : Multiple financing transactions PART 10 : INVESTOR PROTECTIONS Article 57 : Investor protections Article 58 : Stop orders PART 11 : CUSTODIAN Article 59 : Role and responsibilities of the custodian Article 60 : Cash Article 61 : Cash flow monitoring obligations Article 62 : Custody of securities in respect of asset-linked recourse or asset-backed transactions Article 63 : Monitoring obligations in respect of asset-linked recourse or asset-backed transactions Article 64 : Notification and record-keeping requirements and powers of the Authority Article 65 : Power of the Authority to remove and replace custodian PART 12 : SUPERVISION Article 66 : Notification and record-keeping requirements and powers of the Authority PART 13 : THIRD PARTY RELIANCE Article 67 : Third party reliance on acts of the special purposes entity PART 14 : ACCOUNTS AND AUDIT Article 68 : Appointment of an auditor 4

5 Article 69 : Registered directors to prepare accounts PART 15 : RECORD-KEEPING Article 70 : Record-keeping PART 16 : MERGER AND CONVERSION Article 71 : No merger or conversion PART 17 : SETTLEMENT AND INSOLVENCY PROCEEDINGS Article 72 : Settlement proceedings Article 73 : Liquidation proceedings Article 74 : Restrictions on the special purposes entity during settlement or liquidation proceedings Article 75 : Status of the Authority in proceedings Article 76 : Notification completion and final accounts PART 18 : FEES Article 77 : Fees PART 19 : AUTHORITY TO MAINTAIN REGISTERS Article 78 : Register of special purposes entities Article 79 : Register of directors Article 80 : Access to registers Article 81 : Forms Article 82 : Fees PART 20 : PUBLICATION AND ENTRY INTO FORCE Article 83 : Publication and entry into force ANNEXES Annex 1: Supporting documentation Annex 2 : Notification requirements Annex 3: Application of Listing Rules to Special Purposes Entities Annex 4: Application of Offers of Securities Regulations to Special Purposes Entities 5

6 PART 1: GENERAL PROVISIONS Article 1 : Preliminary (c) (d) The purpose of these Rules is to regulate the special purposes entities including its establishment, licensing, registration, offering and management and associated activities in the Kingdom. These Rules should be read in conjunction with, and in addition to, the provisions of Authorised Persons Regulations, the Securities Business Regulations, the Offers of Securities Regulations and the Listing Rules. If the special purposes entity is offering debt instruments by a mean of public offer, Parts 1 to 8 of the Listing Rules apply with respect to a special purposes entity subject to the provisions set out in Annex 3 of these Regulations. If the special purposes entity is offering debt instruments by a mean of private placement, Parts 1 to 5 of the Offer of Securities Regulations apply with respect to a special purposes entity subject to the provisions set out in Annex 4 of these Regulations. Article 2 : Definitions Any reference to the Capital Market Law in these Rules shall mean the Capital Market Law issued by Royal Decree No. M/30 dated 2/6/1424H. Expressions and terms in these Rules shall have meanings which they bear in the Capital Market Law and in the Glossary of defined terms used in the Regulations and Rules of the Capital Market Authority unless the contrary intention appears. (The terms defined below shall be moved to the Glossary of Defined Terms Used in the Regulations and Rules of the Capital Market Authority) - Asset-backed debt instrument: means a debt instrument issued by a special purposes entity under whose terms: the entitlement of holders of the debt instrument to a return is wholly and solely dependent on the returns generated by the special purposes entity s assets; and the sponsor is not obliged to the holders of the debt instrument (whether by guarantee or otherwise) to pay any amounts due on the debt instrument. - Asset-linked recourse debt instrument: means a debt instrument issued by a special purposes entity under whose terms: the entitlement of holders of the debt instrument to a return is defined by reference to the returns generated by the special purposes entity s assets; and the sponsor is obliged to the holders of the debt instrument (whether by guarantee or otherwise) to pay all amounts due on the debt instrument; and - Debt-based recourse debt instrument: means a debt instrument issued by a special purposes entity under whose terms: 6

7 (c) the entitlement of holders of the debt instrument to a return is not defined by reference to the returns generated by the special purposes entity s assets; the sponsor is obliged to the holders of the debt instrument (whether by guarantee or otherwise) to pay all amounts due on the debt instrument; and repayment of all capital is to be made to the holder at or before the maturity of the security. - Financing transaction: means the transaction under which a special purposes entity raises finance by the issue of debt instruments, including the acquisition, transfer or other use of assets required to generate amounts due under the terms of those debt instruments, and the issue of the debt instruments itself. - Shareholder: means in the Rules for Special Purposes Entities, a person who owns shares in the capital of the special purposes entity. - Special purposes entity: means an entity established and licensed to issue debt instruments under the Rules for Special Purposes Entities. - Sponsor: means, in relation to a special purposes entity, the person responsible for sponsoring the special purposes entity in accordance with the Rules for Special Purposes Entities. - Relatives: means in the Rules for Special Purposes Entities, father, mother, spouse, children, brothers, and sisters. Article 3 : Scope and Application These Rules apply to any person referred to in them, including, but not limited to: 1) a special purposes entity and an applicant to become a special purposes entity; 2) a registered director of a special purposes entity and an applicant for registration to become a registered director of a special purposes entity; 3) a sponsor of a special purposes entity; and 4) a custodian appointed by a special purposes entity in accordance with Part 11 of these Rules. Any person to whom these Rules apply shall comply with these Rules. Article 4 : Waivers The Authority may waive any provision of these Rules in whole or in part as it applies to any person either on an application from such person or on its own initiative. Article 5 : Right of Appeal Any person subject to these Rules may appeal to the Committee in respect of any decision or action that the Authority takes under these Rules. 7

8 PART 2: ESTABLISHMENT AND LICENSING Article 6 : Establishment A special purposes entity may only be established by a sponsor subscribing its name to the special purposes entity s by-laws, and making an application to the Authority for licensing in accordance with paragraph (c) of Article 7 of these Rules. A sponsor shall ensure that the special purposes entity complies, from its establishment date, with the requirements of these Rules. Article 7 : Licensing Requirements (c) A special purposes entity shall be licensed at all times in accordance with these Rules. The licensing of a special purposes entity is the responsibility of the sponsor. A sponsor seeking the licensing of a special purposes entity shall submit an application to the Authority in the form prescribed by the Authority, and pay such application fees as the Authority prescribes under Article 77 of these Rules. Article 8 : Licensing conditions A special purposes entity shall satisfy the following conditions at all times: 1) the special purposes entity shall be established under, and comply with all applicable requirements of these Rules; 2) the special purposes entity shall not issue securities other than: a. debt instruments that are asset-backed debt instruments, asset-linked recourse debt instruments or debt-based recourse debt instruments; and b. shares; 3) the shares of the special purposes entity shall be issued to the sponsor or a third party approved by the Authority. 4) the special purposes entity shall not engage in activities other than: a. the issue of shares to its initial shareholders on establishment; or to shareholders as part of an increase in capital under its By-Laws; b. the raising of finance through the issue of debt instruments; c. the realisation, management and investment of the proceeds of the issuance of its debt instruments; and d. ancillary activities necessary to achieve its purpose; 5) the special purposes entity shall have its registered office in the Kingdom; 8

9 6) the special purposes entity shall have by-laws meeting the requirements of Part 3 of these Rules; 7) the special purposes entity shall have paid-up share capital of at least [ ] Saudi Riyals maintained in accordance with Part 4 of these Rules; 8) the special purposes entity shall have at least one shareholder meeting the requirements of Part 5 of these Rules; 9) the special purposes entity shall have at least two registered directors meeting the requirements of Part 6 of these Rules; and 10) the special purposes entity shall have a sponsor meeting the requirements of Part 7 of these Rules. Article 9 : Procedures and powers of the Authority in relation to an application for licensing In considering an application made under paragraph (c) of Article 7 of these Rules, the Authority may: 1) carry out any enquiries that it considers appropriate; 2) require the sponsor or its representative, or a representative of the special purpose entity, to attend before the Authority to answer any questions and explain any matter the Authority considers relevant to the application; 3) require the sponsor to provide such additional information as the Authority considers appropriate within fourteen (14) days of the request; and 4) verify any information furnished by the sponsor or the applicant to become a special purposes entity. The Authority shall, upon receipt of all information and documents required, notify the sponsor in writing of the same, and shall make any of the following decisions within the period specified in paragraph (c) of this Article from the date of the notice: 1) to approve the application; 2) to approve the application subject to such conditions and limitations as it considers appropriate; or 3) to refuse the application, giving reasons. (c) (d) (e) For the purposes of paragraph of this Article, the Authority will make a decision within forty five (45) days if a special purposes entity that is to issue debt-based recourse debt instruments or asset-linked recourse debt instruments, or within ten (10) day if a special purposes entity that is to issue of asset-backed debt instruments. The Authority may refuse to consider the application where the sponsor has failed to provide information requested from it within the time specified in sub-paragraph ( 3) of paragraph of this Article. The Authority may refuse an application if the Authority believes that the licensing of the special purposes entity, or the sale of debt instruments in the special purposes entity may result in a breach of the Capital Market Law or its Implementing Rules. 9

10 Article 10 : Effect of licensing Upon approval by the Authority of the application to licence the special purposes entity, it shall be registered in its register, with the effect that: 1) the special purposes entity shall be considered a legal person capable of exercising all of the functions of a special purposes entity; 2) the by-laws shall bind the special purposes entity and the shareholders such that each of them covenants to observe all the provisions of the by-laws. Article 11 : Pre-licensing contracts Any person who has purported to make a contract in the name of a special purposes entity before its licensing is personally liable for the obligations arising from such contract unless and until the special purposes entity, after its establishment, adopts such obligations by way of: 1) a resolution of the majority of the shareholders representing at least three quarters (3/4) of its share capital, where the special purposes entity has more than one shareholder. 2) a written resolution by the shareholder, where the special purposes entity has one shareholder. Article 12 : Paying up share capital The initial shareholders shall, within six months of the approval by the Authority of an application to license the special purposes entity: 1) pay the full nominal value of their shares; 2) deposit the full nominal value of the special purposes entity s share capital in cash with a local bank; and 3) obtain a certificate from that bank acknowledging receipt of the deposit. 10

11 PART 3: BY-LAWS Article 13 : By-laws A special purposes entity shall have by-laws that specify the following: 1) the name and registered office of the special purposes entity; 2) the name, registered office and business of the sponsor; 3) the name, registered office or residence and business of each shareholder, if different from the sponsor; 4) the share capital of the special purposes entity; 5) the number of shares to be subscribed for by each shareholder and the nominal value of those shares; 6) the start and end dates of the special purposes entity s financial year; 7) the purposes, management, operation and ownership of the special purposes entity; and 8) any other matters required by these Rules to be specified in the by-laws. (c) The Authority may prescribe one or more standard forms of by-laws to be adopted by special purposes entities. Where the Authority has prescribed such standard form by-laws, no departure from that standard form is permissible without the prior written consent of the Authority, except for adding details required to be included in the standard forms prescribed by the Authority, or selections required to be made. A special purposes entity s by-laws shall be approved by the Authority. Upon approval by the Authority of the Special purposes Entity s by-laws, the by-laws shall be signed by the sponsor and, where the sponsor is not the special purposes entity s shareholder, each other shareholder in the presence of a Saudi Arabian notary public. 11

12 PART 4: CAPITAL Article 14 : Paid-up capital (c) The paid-up share capital of a special purposes entity shall be divided into one class of nondivisible shares of equal value. Contributions by shareholders to the paid-up share capital of the special purposes entity may only be made in cash and not by way of other property, services, or otherwise in kind. The full nominal value of a special purposes entity s paid-up share capital shall at all times be deposited and maintained in cash with a local bank. 12

13 PART 5: SHAREHOLDERS Article 15 : Application Where a special purposes entity has only one shareholder, all the Articles in this Part apply except for Articles 17, 18, 19 and 20. Where a special purposes entity has more than one shareholder, all the Articles in this Part apply except for Article 21. Article 16 : Financial rights and liabilities (c) (d) A shareholder is considered indebted to the special purposes entity for the contribution it has undertaken to make to the special purposes entity s share capital. If a shareholder fails to surrender such contribution on the date set therefor it shall be liable to the special purposes entity for any damages arising from such delay. Subject to Article 11 of these Rules, a shareholder s liability for the debts of a special purposes entity is limited to the extent of its contributions to the share capital of that special purposes entity. No personal creditor of a shareholder may seek satisfaction of its rights out of the shareholder's interest in the special purposes entity's share capital, but he/she may seek satisfaction of its rights out of the share in the profits has been paid to the shareholder, or that shareholder has encumbered his interest in the shares of the special purposes entity in accordance with paragraph of Article 22 of these Rules. Shareholders shall share the profits and losses in the manner stated in the special purposes entity's by-laws. If a special purposes entity's by-laws fail to specify a shareholder's share in the special purposes entity's profits or losses, such share shall be in proportion to his interest in the share capital. If the by-laws only specify a shareholder's share in the profits, his share in the losses shall be equal thereto. If the by-laws only specify a shareholder's share in the losses, his share in the profits shall be equal thereto. Article 17 : General meetings General meetings of the special purposes entity's shareholders may only be called in the manner specified in its by-laws provided that a general meeting shall be convened at least once a year within six (6) months after the end of the financial year of the special purposes entity. A special purposes entity shall keep minutes of each general meeting and of each resolution of the shareholders. Article 18 : Shareholders rights to participate in decisions Without prejudice to sub-paragraph (1) of paragraph of Article 57 of these Rules, every shareholder shall have the right to participate in deliberations and in voting. The by-laws shall specify the number of votes to which shareholders are entitled. Article 19 : Use of proxy A shareholder may give proxy to another person to attend shareholders' meetings and vote on his behalf. 13

14 Article 20 : Resolutions Resolutions of the shareholders may only be passed in the manner specified in the by-laws, without prejudice of the following: 1) resolutions shall be valid only if adopted by a number of shareholders representing more than half of the capital; 2) the special purposes entity s by-laws may only be altered by a resolution of the majority of the shareholders representing at least three quarters (3/4) of the capital; 3) the special purposes entity s adoption of third party obligations shall be valid only if adopted by a resolution of the majority of the shareholders representing at least three quarters (3/4) of the capital. Without prejudice to the rights of any third party acting in good faith, a resolution adopted by the shareholders in violation of the provisions of these Rules or of the by-laws shall be null and void. Article 21 : Single shareholder decision-making procedures Where a special purposes entity has only one shareholder, all shareholder decisions shall be made by written resolution of the shareholder, records shall be kept of each resolution of the shareholder, and the shareholder may not give proxy, or otherwise delegate power, to another person to pass shareholder resolutions. Without prejudice to the rights of any third party acting in good faith, a resolution adopted by the shareholder in violation of the provisions of these Rules or of the by-laws shall be null and void. Article 22 : Transfer of shares (c) Subject to paragraphs and (c) of this Article, shares in the special purposes entity shall be freely transferable among shareholders and their successors. Subject to paragraph (c) of this Article, no shareholder may assign, encumber or otherwise dispose or deal with (whether with or without consideration) the whole or any part of its rights, title or interests in the shares of the special purposes entity without the prior written consent of the other shareholders as expressly contemplated by the by-laws of the special purposes entity. No shareholder may assign, encumber or otherwise dispose or deal with (whether with or without consideration) the whole or any part of its rights, title or interests in the shares of the special purposes entity during the period commencing thirty (30) calendar days prior to the end of the financial year and ending on the day following the approval required by of Article 69 of these Rules of the annual report relating to such financial year. Article 23 : Effect of contribution A shareholder shall be bound by the special purposes entity s by-laws and be deemed to covenant to observe all the applicable provisions of the by-laws. 14

15 Article 24 : Share register The special purposes entity shall maintain a share register showing details of each shareholder and its shareholding in the special purposes entity. No transfer of ownership of shares in the special purposes entity shall be effective against the special purposes entity or any third party unless the transfer of ownership is entered in the share register, and this register shall be conclusive evidence of the persons entitled to the shares in the special purposes entity. Article 25 : Increases and decreases in share capital The special purposes entity s by-laws shall provide the circumstances in which the special purposes entity s share capital may be increased and decreased, and in all circumstances, no increase or decrease in the special purposes entity s share capital may take place without the prior written approval of the Authority. 15

16 PART 6: REGISTERED DIRECTORS Article 26 : Requirements for registration The directors of a special purposes entity shall be registered at all times in accordance with these Rules. If a special purposes entity has issued, or is to issue, asset-linked recourse debt instruments or asset-backed debt instruments, the registered directors of the special purposes entity shall be independent of the sponsor. For this purpose a registered director is independent if: 1) neither he nor any of his relatives is closely linked with the sponsor or any of its affiliates; and 2) neither he nor any of his relatives is employed by, contracted to, remunerated by, or an officer of, the sponsor or an affiliate of the sponsor. (c) (d) A registered director of a special purposes entity that has issued, or is to issue, asset-linked recourse debt instruments or asset-backed debt instruments, may not be a registered director of any special purposes entity that has the same sponsor. If a special purposes entity has issued, or is to issue, asset-linked recourse debt instruments or asset-backed debt instruments, the sponsor and the special purposes entity shall ensure: 1) where the special purposes entity s registered office, or any premises from which the special purposes entity conducts business, are the same as the sponsor s registered office, or any premises from which the sponsor conducts business, that effective policies and procedures are in place to: a. secure confidential or inside information obtained by the special purposes entity in the course of its operations under these Rules; b. ensure that such information is known only to the registered directors and employees of the special purposes entity; and c. ensure that such information is not disclosed to any of the sponsor, any affiliate of the sponsor, or any person that is closely linked with, employed by, contracted to, remunerated by, or an officer of the sponsor or an affiliate of the sponsor, including, where appropriate, effective arrangements to ensure the physical separation of the sponsor s employees from the special purposes entity s registered directors and employees. 2) as an alternative to sub-paragraph (1) of paragraph (d) of this Article, neither the special purposes entity s registered office, nor any premises from which the special purposes entity conducts business, are the same as the sponsor s registered office, or any premises from which the sponsor conducts business. (e) If a registered director who is required to be independent under paragraph of this Article ceases to be independent: 1) he shall immediately notify the special purposes entity, cease to exercise any function as a registered director without the prior written consent of the Authority and resign 16

17 his position as a registered director with effect from the next board meeting of the special purposes entity; and 2) if a further registered director is needed in order for the special purposes entity to meet its obligations under these Rules, the special purposes entity shall immediately take steps to appoint a replacement registered director. Article 27 : Residence A registered director shall be resident in the Kingdom unless the Authority exempts him from this requirement. Article 28 : Appointment, removal and remuneration of registered directors A special purposes entity s by-laws shall provide for the procedures to appoint and remove registered directors and shall provide for the remuneration of registered directors. A person who is appointed a registered director shall be bound by the special purposes entity s by-laws. Article 29 : Duties of Registered Directors A registered director of a special purposes entity owes the following duties to the special purposes entity: 1) To act in accordance with the special purposes entity s by-laws. 2) To exercise his powers only for the purposes for which they are conferred. 3) To exercise independent judgment. This duty is not infringed by the following: a. acting in accordance with an agreement duly entered into by the special purposes entity that restricts the future exercise of discretion by the registered directors. b. acting in a way authorised by the special purposes entity s by-laws. 4) To exercise reasonable skill, care and diligence, meaning the skill, care and diligence that would be exercised by a reasonably diligent person with: a. the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the registered director; and b. the general knowledge, skill and experience that the registered director has. 5) To avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the special purposes entity. This duty is not infringed if the situation cannot be reasonably regarded as likely to give rise to a conflict of interest. 6) Not to accept a benefit from a third party (being a person other than the special purposes entity) conferred by reason of his being a registered director or his doing (or not doing anything) as a registered director. This duty is not infringed if the acceptance of the benefit cannot reasonably be regarded as likely to give rise to a conflict of interest. 17

18 7) If the registered director is, either directly or indirectly, interested in a proposed transaction or arrangement of or with the special purposes entity, to declare the nature and extent of that interest to the other registered directors. A registered director need not to declare an interest if it cannot reasonably be regarded as likely to give rise to a conflict of interest. Article 30 : Decision-making The by-laws shall specify the decision-making processes to be followed by registered directors. Minutes shall be kept of every registered directors meeting and of every resolution made by them. Article 31 : Powers and authorities The registered directors of a special purposes entity shall have all powers and authorities as are not required by these Rules or the special purposes entity s by-laws to be exercised by the shareholders. Such powers shall cease on and from the point at which the special purposes entity enters into the stage of liquidation. Article 32 : Delegation (c) Subject to paragraph of this Article, the registered directors may delegate any of their powers to any person but shall retain ultimate liability for the exercise of any such delegated powers. A special purposes entity shall notify the Authority in writing of any arrangements relating to directors delegating any of their powers to any other person. If the special purposes entity has issued, or is to issue, asset-linked recourse debt instruments or asset-backed debt instruments, the registered directors may not delegate any of their powers to the sponsor, an affiliate of the sponsor, or any person that is closely linked with, employed by, contracted to, remunerated by, or an officer of, the sponsor or an affiliate of the sponsor. Article 33 : Liability The registered directors shall be jointly responsible for damages sustained by the special purposes entity, the shareholders, or third parties as a result of the registered directors violating the provisions of these Rules or of the special purposes entity s by-laws, or of wrongful acts committed by them in the performance of their duties mentioned in Article 29 of these Rules. Article 34 : Register of directors A special purposes entity shall maintain a register of the details of each registered director. Article 35 : Registration The registration shall be made on the form prescribed by the Authority. An applicant for registration to become a registered director of a special purposes entity becomes subject to these Rules from submission of the registration form. 18

19 (c) (d) An applicant for registration to become a registered director of a special purposes entity shall not be appointed as a registered director until seven (7) days after the submission of the registration form. The sponsor shall pay such fees as may be determined by the Authority in relation to a registration under this Part. Article 36 : Responsibilities of registered directors (c) A registered director is responsible for ensuring that the special purposes entity carries on its business in accordance with these Rules. This Article applies to any person who fulfils the role of a registered director of a special purposes entity, whether or not registered as such. A registered director shall provide to the Authority any information and documents that the Authority may require for the purpose of administration of the Capital Market Law and its Implementing Regulations. Article 37 : Notification requirements and powers of the Authority A registered director shall ensure that: 1) he complies with the notification requirements set out in Annex 2 which applies to him; and 2) all information he provides to the Authority under these Rules is complete, clear, accurate and not misleading. (c) On receiving a notification under paragraph of this Article, the Authority may require the registered director to provide any information it considers necessary to assess the matter. In relation to a registered director, the Authority has power to take any of the following actions: 1) carry out any enquiries which it considers appropriate; 2) require the registered director to appear before the Authority to answer any questions and explain any matter it considers relevant to his role; 3) require the provision of information; and 4) verify the accuracy of any information furnished by the registered director. Article 38 : Suspension or cancellation of registration The Authority may suspend or cancel the registration of a registered director on notice to the special purposes entity, if the registered director violates any provision of the Capital Market Law or its Implementing Regulations, commits any offence involving fraud or any act involving a lack of integrity or dishonesty, or becomes insolvent. A special purposes entity may terminate the directorship of a registered director on request of the registered director or as otherwise provided by these Rules or the by-laws of the special purposes entity. 19

20 (c) (d) (e) If a registered director s registration is suspended or cancelled, the special purposes entity shall ensure that the person immediately ceases to act as a registered director of the special purposes entity. The special purposes entity shall notify the Authority in writing within seven (7) days of a registered director ceasing to be a registered director.. Upon receipt of the notice by the Authority, the registration shall be terminated. A registered director continues to be subject to the jurisdiction of the Authority in respect of any act or omission that occurred before the cancellation of his registration and for two (2) years thereafter. If at any time during this period the Authority commences any enforcement investigation or proceedings, the registered director with cancelled registration continues to be subject to the jurisdiction of the Authority until the end of the enforcement investigation or proceedings. 20

21 PART 7: SPONSOR Article 39 : Requirement for sponsor A special purposes entity, and each financing transaction undertaken by it, shall be sponsored by a single sponsor. A special purposes entity may not have multiple sponsors. Article 40 : Status of sponsor A sponsor shall fulfil the following conditions at all times: 1) if the special purposes entity has issued, or is to issue, debt-based recourse debt instruments, the sponsor shall be a Saudi joint stock company that complies with all applicable requirements of the Corporate Governance Regulations; 2) if the special purposes entity has issued, or is to issue, asset-linked recourse debt instruments or asset-backed debt instruments, the sponsor shall be an authorised person whose permitted business profile covers all securities business activities to be undertaken in connection with the activities of the special purposes entity, a local bank or a finance company. A sponsor that is not an authorised person shall produce to the Authority on demand a legal opinion that demonstrate that its activities in connection with the special purposes entity do not require authorisation under the Capital Market Law. The legal opinion referred to in this paragraph shall be issued by an independent licensed lawyer/law firm with considerable experience in the field. Article 41 : Restrictions on sponsor rights against special purposes entity Neither a sponsor, nor any of its affiliate, may have any interest in or claims against the assets of the special purposes entity other than in respect of: 1) paid up securities lawfully issued to such persons; and 2) claims fully and fairly disclosed in the offering documentation of the special purposes entity. Article 42 : Notification and record-keeping requirements and powers of the Authority A sponsor shall ensure that: 1) it complies with the notification requirements set out in Annex 2 which apply to it; and 2) all information it provides to the Authority in relation to its sponsorship is complete, clear, accurate and not misleading. (c) On receiving a notification under paragraphs of this Article, the Authority may require the sponsor to provide any information it considers necessary to assess the matter. A sponsor shall record and retain sufficient information about its sponsorship to demonstrate compliance with these Rules. This includes records of all financial transactions with or 21

22 relating to the special purposes entity. Such records shall be maintained for a minimum of ten (10) years. (d) A sponsor shall provide to the Authority any information and documents that the Authority may require for the purpose of administration of the Capital Market Law and its Implementing Regulations. 22

23 PART 8: NEW FINANCING TRANSACTIONS Article 43 : Application This Part sets out requirements applicable to each financing transaction entered into in relation to the issuance of a new class or series of debt instruments by a special purposes entity. Article 44 : Approval of new financing transactions by the Authority (c) No financing transaction may be entered into in relation to the issuance of a new class or series of debt instruments by a special purposes entity without obtaining an approval from the Authority for the financing transaction application required under paragraph of Article 45 of these Rules. A financing transaction shall meet each of the applicable transaction conditions specified in Part 9 of these Rules. Approval under this Part may relate to multiple issues of debt instruments under a single issuance programme. The special purposes entity shall give the Authority the following prior written notice of each issue proposed to be made under a programme that has been approved under such a programme: 1) in respect of a financing transaction in relation to an issue of debt-based recourse or asset-linked recourse debt instruments, forty five (45) days; or 2) in respect of a financing transaction in relation to an issue of asset-backed debt instruments, ten (10) days. (d) (e) Neither a sponsor nor a special purposes entity shall offer or hold itself out, or allow a third party to offer or hold itself out, as offering debt instruments in the special purposes entity which are subject of the application unless it has received the Authority s approval referred to in paragraph of this Article. An applicant shall commence the offer of debt instruments within six (6) months of receipt of the Authority s approval under paragraph of this Article, failing which the approval shall lapse. Article 45 : Procedures and powers of the Authority in relation to a financing transaction application The sponsor shall submit an application to the Authority which contains the information specified in Annex 1 of these Rules. In respect of the first financing transaction to be undertaken by the special purposes entity, the application may be made at the same time as the application for the licensing of the special purposes entity under Part 2 of these Rules. The Authority shall, upon receipt of all information and documents required, notify the sponsor in writing of the same, and shall make any of the following decisions within the period specified in paragraph (c) of this Article from the date of the notice: 1) to approve the financing transaction application, and in respect of a financing transaction in relation to an issue of asset-backed debt instruments the approval of the Authority is considered obtained upon the lapse of 10 days from the date of the Authority notification referred to in paragraph of this Article unless the Authority 23

24 makes any of the decisions mentioned in this Article before the lapse of the period specified in this sub-paragraph; 2) to approve the financing transaction application subject to such conditions and limitations as it considers appropriate; or 3) to refuse the financing transaction application. (c) For the purposes of paragraph of this Article, the relevant period is: 1) in respect of a financing transaction in relation to an issue of debt-based recourse debt instruments or asset-linked recourse debt instruments, forty five (45) days; or 2) in respect of a financing transaction in relation to an issue of asset-backed debt instruments, ten (10) days. (d) In considering an application made under paragraph of this Article, the Authority may: 1) carry out any enquiries that it considers appropriate; 2) request the sponsor or its representative, or, if any, a representative of the special purposes entity, to attend before the Authority to answer questions and explain any matter the Authority considers relevant to the application; 3) request the sponsor to provide such additional information as the Authority considers appropriate within fourteen (14) days of the request; and 4) verify any information provided by the sponsor or the special purposes entity. (e) (f) The Authority may refuse to consider the application where the sponsor or the special purposes entity has failed to provide information requested from it within the time specified in sub-paragraph ( 3) of paragraph (d) of this Article. The Authority may refuse the financing transaction application if the Authority believes that the proposed financing transaction may result in a breach of the Capital Market Law or its Implementing Regulations. Article 46 : Timing periods To the extent that an application under this Part is made at the same time as an application under Part 2 of these Rules, any time period specified in this Part shall run concurrently, not consecutively, with any time period specified in Part 2 of these Rules. 24

25 PART 9: FINANCING TRANSACTIONS CONDITIONS Article 47 : Application (c) (d) This Part sets out the conditions that a special purposes shall ensure that they are met with respect to a financing transaction entered into by it in relation to the issuance of a new class or series of debt instruments. A special purposes entity shall ensure that the conditions in Articles 49 to 54 are met with respect to every financing transaction. Where a special purposes entity enters into a financing transaction involving the issue of asset-linked recourse debt instruments or asset-backed debt instruments, it shall also ensure that the conditions in Article 55 of these Rules are met. Where a special purposes entity enters into multiple financing transactions, it shall also ensure that the condition in 56 of these Rules are met. Article 48 : Financing structures There is no limit on the type of financing structure that may be utilised by the special purposes entity in a financing transaction. Article 49 : Appointment of a custodian The special purposes entity shall appoint a custodian in accordance with Article 59 of these Rules. The special purposes entity shall be provide the custodian with all necessary information and data to enable it to perform its functions under these Rules. Article 50 : Investor protection The documentation associated with the financing transaction shall include appropriate arrangements to safeguard the interests of investors in accordance with Article 57 of these Rules, including the appointment of an agent or trustee. Article 51 : Use of proceeds The proceeds of issuance of the debt instruments shall be realised,, held, managed (where relevant) and invested consistent with the disclosure made under the Listing Rules or the Offered Securities Rules, as applicable, and with the terms and conditions of the debt instruments. Article 52 : Payments and bank accounts Without prejudice to Article 51 of these Rules: 1) where the terms and conditions of the debt instruments provide for such payments to be made to the special purposes entity, all payments made by or on behalf of investors on subscription for debt instruments of a special purposes entity shall be received into the account of the designated bank appointed under Article 60 of these Rules; 2) all payments made by the special purposes entity shall be realised and made in accordance with these Rules, all applicable laws and regulations, the by-laws of the 25

26 special purposes entity and the terms and conditions of the debt instruments issued by it; and 3) where the terms and conditions of the debt instruments provide for such payments to be made by the special purposes entity to the investors, all payments made shall be paid from the account of the designated bank appointed under Article 60 of these Rules. Article 53 : Investments Without prejudice to Article 51 of these Rules, all investments made by the special purposes entity shall be made, monitored, (where relevant) managed and realised in accordance with these Rules, all applicable laws and regulations, the by-laws of the special purposes entity and the terms and conditions of the debt instruments issued by it. Article 54 : Enforceability Each financing contract entered into by the special purposes entity in relation to a financing transaction shall be: 1) legal, valid and binding on each party to it insofar as relevant to the interests of investors, except as clearly disclosed in the prospectus or private placement offering document; and 2) consistent with the disclosure provided under the Listing Rules or the Offered Securities Regulations, as applicable. Article 55 : Financing transactions involving the issue of asset-linked recourse debt instruments or asset backed debt instruments Financing transaction involving the issue of asset-linked recourse debt instruments or asset backed debt instruments is subject to the following requirements: 1) the sponsor shall be an authorised person, a local bank or a finance company in accordance with sub-paragraph (2) of paragraph of Article 40 of these Rules; 2) the custodian shall hold custody of the securities held by the special purposes entity in accordance with Article 62 of these Rules; and 3) the custodian shall supervise the assets of the special purposes entity in accordance with Article 63 of these Rules. Article 56 : Multiple financing transactions The sponsor shall be able to demonstrate to the Authority that adequate legal safeguards are in place to ensure that investors in a financing transaction are not at risk of losses arising by reason of liability of the special purposes entity under any other financing transaction to which the special purposes entity is party, unless the transaction is a part of a financing transaction and its clearly disclosed in the prospectus or private placement offering document, as applicable. 26

27 PART 10: INVESTOR PROTECTIONS Article 57 : Investor protections The documentation associated with the financing transaction shall include adequate protections for holders of debt instruments issued by the special purposes entity. This shall include at a minimum the arrangements set out in this Article. The documentation associated with the financing transaction shall include a valid, legally binding and irrevocable arrangement preventing a holder of the shares issued by the special purposes entity from: 1) exercising any of its rights as shareholder without the consent of a majority of the holders of the debt instruments relating to the financing transaction; or 2) disposing of the shares other than as expressly contemplated by the terms of the debt instruments and disclosed under the prospectus or private placement offering memorandum. (c) The documentation associated with the financing transaction shall include a valid, legally binding and irrevocable arrangement enabling holders of debt instruments, acting by a majority of the holders (by par value) eligible to vote of each class of holders of debt instrument issued by the special purposes entity, to compel the special purposes entity: 1) to act in accordance with the instructions of the holders in relation to the financing transaction to which their debt instruments relate; and 2) to enforce all rights and claims of the special purposes entity with respect to the financing transaction. (d) (e) Neither the sponsor nor any affiliate of it, nor any person acting on behalf of the sponsor, may exercise any voting rights with respect to debt instruments issued to it in a meeting of holders of a class of debt instruments. The by-laws of the special purposes entity shall include provision for the appointment of an agent or trustee to represent the interests of holders of debt instruments. Article 58 : Stop orders The Authority may at any time issue an order to a special purposes entity or its sponsor prohibiting or restricting the marketing or sale of debt instruments in the special purposes entity if the Authority believes that the marketing or sale of those debt instruments may result in a breach of the Capital Market Law or its Implementing Regulations. A special purposes entity or sponsor served with a notice under paragraph of this Article shall: 1) immediately cease, and procure that any person acting on its behalf ceases, the marketing or sale of the debt instruments; 2) immediately notify any other person of whom it is aware marketing or selling the debt instruments of the issue of the order; and 3) on request from the Authority, notify the Authority of the identity of any person involved in the marketing or selling of the debt instruments. 27

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